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An aerial view of the O'Brien property at 11 Roger Road.

Under pressure, town mulls purchase of litigious property

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By Tuesday, Jul 17, 2018 News 8

Great Barrington — In order to resolve a longstanding dispute, the town is considering purchasing a property that has become a nuisance to residents in the Blue Hill neighborhood.

The neighborhood abutting Roger Road in Great Barrington is otherwise quiet and residential. Photo: Terry Cowgill

If negotiations with the owner result in acceptable terms, then the town could become the proud owner of 11 Roger Road, the 8-acre site of a trucking company, owned by Gary J. O’Brien, whose main business, Gary J. O’Brien Property Services, is based in Lee.

The selectboard has held a pair of closed-door meetings on the possible purchase and related litigation this month. Last night’s executive session lasted more than 45 minutes. When board members emerged, they said little except that their goal is to add the item to the warrant for a special town meeting scheduled for Monday, Aug. 6. That special town meeting was originally called to consider a petitioner’s request to repeal a bylaw passed in May that restricted the sale of plastic water bottles.

“We don’t have anything to announce yet; we don’t have anything in writing, signed,” said selectboard Chairman Steve Bannon, adding that he expects an announcement next Monday, July 23, when the board meets again.

See video below of selectboard Chairman Steve Bannon’s remarks concerning the 11 Roger Road property at last night’s selectboard meeting in town hall:

At any rate, Bannon said that, in order to meet the deadline for placing the item on the warrant, the board had to vote last night to include the possible purchase for the special town meeting, even if the purchase falls through.

“We could always skip over it if we don’t have an agreement signed,” Bannon explained. “So we’re going to put it on there in hopes, pretty confidently, that we will get something signed by next Monday.”

The selectmen and other town officials have largely declined to comment on the case since it went back into active litigation earlier this year.

The Great Barrington Selectboard shares a light moment at its July 16 meeting. Photo: Terry Cowgill

Last December, several angry residents who live near O’Brien’s trucking operation went to a selectmen’s meeting to complain about a decades-old problem: a heavy-equipment business whose vehicles roar up and down the residentially zoned Blue Hill and Roger roads at all hours of the day and whose owner seemed to be ignoring the cease-and-desist order issued Nov. 22, 2017, by building inspector and code enforcement officer Ed May.

O’Brien has been issued multiple cease-and-desist orders in the last six years. On June 23, 2011, May issued O’Brien an order to immediately cease using the property as a landscaper’s yard because he was only permitted to use it as a tree farm. If he wanted to use it as a landscaper’s yard, O’Brien would have to apply for a special permit from the zoning board of appeals. The property had been found to be in violation three times in seven months.

Most recently, the case has resulted in another tangle of litigation. Eventually, the ZBA earlier this year allowed O’Brien to operate but with a list of conditions. O’Brien appealed the ZBA ruling in state Land Court, while neighbor and O’Brien antagonist Roger Belanger has sued the ZBA in Berkshire Superior Court. The selectboard has been discussing both of those cases in executive session this month, as well.

At the July 16 meeting of the Great Barrington Selectboard, Blue Hill Road resident Michael D. Andelman wanted to know about the status of the fines being levied against O’Brien’s business. Photo: Terry Cowgill

Last week, one of the neighbors, Michael D. Andelman, had cautioned the selectmen about the purchase of the property. He suggested the lot might be environmentally compromised, though he did not know for sure. He said he had looked into buying the O’Brien property himself “but the price they proposed to me was unreasonable.”

In a follow-up interview, Blue Hill Road resident Andelman told the Edge he had made an inquiry to a local real estate broker in February when “the property was not technically on the market.” Andelman said he wanted to partner up with a nonprofit that might want to use the property, which abuts conservation lands and includes a condemned home at the bottom of the driveway leading to the trucking business and the outbuildings at the top of hill.

O’Brien offered to sell the property to Andelman for $400,000 with the goal of vacating the premises by late summer or early fall of 2019. Andelman said he was not willing to go above $299,000, and refused to wait that long, so the deal collapsed.

According to records in the assessor’s office, 11 Roger Road is assessed for tax purposes at $255,300. The value of the 8 acres of land itself is only a little more than $100,000, while a boarded-up home and large outbuilding associated with the business are worth a combined $151,900. O’Brien’s company bought the property in 2010 from Roger Brownson’s company, CDS Development LLC, for $210,000.

Kristen and Gary J. O’Brien

Reached by phone Tuesday, O’Brien referred questions to his wife, Kristen, who manages GJO LLC, the company that owns 11 Roger Road. She declined to comment.

In response to a question from Andelman, Bannon said O’Brien’s fines will continue to mount even while the case remains unresolved. Bannon also added later that the town is looking into the environmental status of the property.

Another neighbor who had complained of being confronted with an “industrial siege,” Paul Jones, told the Edge he was generally supportive of a town purchase of 11 Roger Road: “That residential property has been terribly exploited since 1996 and extensively so since 2011. If the selectboard can breathe new life into that parcel of land, the purchase will be a good idea.”

Two town residents who spoke on the condition of anonymity and have land-use and development experience told the Edge it would be a mistake for the town to buy the property. The better option, one said, would be for the legal system to run its course. The other added that a purchase by the town appears to be an effort to spare taxpayers—and O’Brien—further litigation costs. Still, he is convinced that buying the property would amount to rewarding O’Brien for his violations.The industrial use of O’Brien’s Great Barrington property, which is now now located in a residential zone, predates the town’s adoption of zoning regulations in the 1930s, so it is considered a pre-existing nonconforming use and is thus allowed to continue, though with certain restrictions. According to the town’s zoning map, 11 Roger Road falls within two zones, both of which are residential.

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8 Comments   Add Comment

  1. John says:

    -Been in the same industrial use since the 1930’s?? …. I say leave it that way.
    -Too bad folks buy a place right next to a road, then don’t like what they bought next to a road, and try to make it everyone else’s problem.
    -400K seems pretty cheap for 8 acres, with a view.

    1. Anonymous says:

      The current use in no way shape or form resembles the use in 1930s. Town is going to pay to buy the land, or to fight the legal battle. Voters to decide.

  2. Kayemtee says:

    Wow, a whole new way for Great Barrington to waste taxpayers’ money. If town leaders are so worried about litigation expenses, perhaps they should use the money to rebuild the curbs on the disastrous Main Street redesign before someone trips, hits his head, and sues the town.

    1. Anon says:

      Town appears to be trying to right a wrong made long ago. A wrong that was no fault of the local residents, but that impacted many local residents who have lived there for decades (many of them living there peacefully in a residential zoned area) and back to the 1980s, 1970s and even 1950s – Town should be applauded if finally trying to resolve this matter and restoring the peace to this neighborhood, especially when State Law is on their side.

  3. Anonymous says:

    Law in Massachusetts very clearly indicates that these non-conformities can only be maintained if they are not obtrusive and do not adversely impact he surrounding neighborhood / residents. As this clearly does going back to early 1990s, and certainly since current owners purchased the property, the non-conformity should soon cease to exist – one way or another. Not to mention Town zoning bylaws clearly prohibit current use.

  4. Jennifer T says:

    It should be noted here that when current owner’s bought the land in ~2010 they were going to be tree farmers. Then they moved in their landscaping business (which wasn’t allowed, and was moved out), now they’re in the general trucking business.

    The bottom-line is you can’t just use this property for whatever you want whenever you want. A poor business decision was made to buy such a suspect and limited property within the heart of a residential zone. I don’t know what kind of people think you can run 4 axle diesel dump trucks daily, tractor trailer trucks, revving race cars (and at all hours of the day and night) by residences with people walking, children and pets playing trying to enjoy their homes and property as diesel fumes and exhaust enter the yard and windows of these homes. Residents in the neighborhood should look forward to final resolution in the future.

  5. Blue Hill Road Improvement says:

    There’s an opinion/agenda out there to “blame” and focus on the 3 newish homes on Roger Road as the cause of complaint in this matter. This is not true. There is documented evidence that neighbors have been engaged in complaints of nuisance and non-conforming use of property since prior to 1995 – when those 3 homes were not even there!

    Furthermore, there are no less than ~25 other residential abutters and other neighborhood residential properties that are negatively impacted by this Business daily – many of whom have been fighting this battle since the early 1990s, and asking [begging] for the Town to help by enforcing Town bylaws, not recreate them after the fact.

    Please help the Town and Resident improve this marginalized neighborhood.

  6. Terry Cowgill says:

    Town Manager Jennifer Tabakin has contacted the Edge to clarify that she was not “Jennifer T,” the Edge reader who posted the comment above. -TC

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